Appeals Court Rules against Arizona Law as Immigration Measures Lose Steam in State Legislatures

April 14, 2011

Policy Beat

By Muzaffar Chishti, Claire Bergeron

Arizona Attorney General Tom Horne has publicly decried the recent ruling of the 9th Circuit Court, and he and Governor Jan Brewer are considering legal options for appeal.

In a ruling that marks a significant victory for immigrant advocates and the Obama administration, a three-judge panel of the 9th U.S. Circuit Court of Appeals affirmed this week a lower court’s decision enjoining implementation of many of the key provisions of Arizona’s controversial immigration law, SB 1070.

The decision casts new doubt on the constitutionality of the Arizona law, and will likely further dampen efforts to enact SB 1070-like bills in other states, where economic concerns have already caused state legislators to reconsider or abandon them.

Arizona’s SB 1070, which the state legislature enacted nearly one year ago, includes a series of measures intended to strengthen immigration enforcement and reduce the size of the unauthorized immigrant population in the state.

Specifically, the law allows state and local law enforcement officers to inquire into the immigration status of anyone stopped by the police if there is a “reasonable suspicion” that the individual is an unauthorized immigrant. It also makes it a state crime for noncitizens to fail to carry proof of their legal status, and stipulates that law enforcement officials cannot release an arrested individual until they have verified his or her immigration status.

During the summer of 2010, the U.S. Department of Justice — as well as a number of immigrant advocacy groups, civil-rights organizations, and individual Arizona residents — brought lawsuits arguing that SB 1070 was preempted by federal law. In July of that year, U.S. District Court Judge Susan Bolton granted the Department of Justice’s motion for a temporary injunction halting implementation of several of the law’s key provisions. The recent decision by the appeals court affirms Judge Bolton’s prior ruling.

In its 2-1 ruling, the 9th Circuit panel agreed that several of SB 1070’s provisions are likely preempted by federal law. The appellate judges concluded that, by crafting its own state-specific immigration enforcement policy, Arizona “interferes with the federal government’s authority to implement its priorities and strategies in law enforcement” and turns “Arizona officers into state-directed DHS agents.” Such an outcome, the court asserted, is at odds with the federal government’s broad authority to set a national immigration policy.

Governor Jan Brewer and Attorney General Tom Horne, both Republicans, have indicated their intention to appeal the court’s ruling. The state may seek a new hearing on the law before the entire 9th Circuit (rather than just a three-judge panel), or directly appeal to the U.S. Supreme Court.

But the 9th Circuit’s decision to block implementation of the Arizona law suggests that federal courts may be unwilling to uphold the constitutionality of state-specific immigration measures, particularly when those measures go farther than existing federal law in crafting immigration policy.

The decision also provokes questions about whether other recent state-level attempts at immigration legislation will ultimately experience any success.

State-level Immigration Enforcement Bills Lose Steam

The quick passage of a spate of state-level immigration measures was expected in the aftermath of the sweeping Republican victories in the 2010 midterm elections. However, as legislative sessions in many states come to a close, it seems economic, fiscal, and political realities have set in and led some state legislatures to abandon or table proposed Arizona-like immigration enforcement bills.

During the first quarter of 2011, state legislatures in Colorado, Illinois, Iowa, Kansas, Kentucky, Mississippi, Nebraska, New Hampshire, Virginia, and Wyoming all tabled measures that contained provisions similar to those of SB 1070. In most of these states, the political momentum behind the proposed immigration enforcement bills seems to have stalled primarily because of concerns over the bills’ fiscal and economic impact.

The financial burden of the inevitable litigation resulting from the passage of an Arizona-type bill, underscored by the ongoing legal challenges to SB 1070, has proven to be a major consideration, especially at a time when many states are struggling with looming budget deficits. (According to media reports, Arizona has spent more than $1.5 million so far defending SB 1070).

Perhaps more importantly, members of the business community and law enforcement officials — two groups not traditionally outspoken on immigration enforcement legislation — in several states have expressed increasing unease with the strict state-level immigration measures.

In Arizona, for example, the state legislature recently declined to pass a set of five additional immigration enforcement bills after a coalition of 60 Arizona business leaders — including some CEOs of major corporations — came together to oppose the measures.

Two of the bills would have restricted granting birthright citizenship to the U.S.-born children of unauthorized immigrants in Arizona. The others would have prohibited unauthorized immigrants from driving, required public schools to report on the immigration status of enrolled students, and mandated that hospitals report to federal immigration authorities patients with undetermined immigration status seeking emergency or nonemergency medical treatment.

In expressing their opposition to the legislation, the business leaders cautioned against the “unintended consequences” that would occur if the laws were enacted, citing as evidence the economic losses suffered by Arizona businesses from the boycotts following the passage of SB 1070.

Similarly, a coalition of business and agricultural groups in Kansas launched a campaign against a legislative proposal that would have required state agencies and contractors to use the federal E-Verify program, and that included a provision similar to Arizona’s SB 1070. The Kansas House, on a procedural vote of 84 to 40, declined to move the bill forward.

The defeat of the proposal was especially noteworthy because it was drafted by the state's newly elected Secretary of State, Kris Kobach (R), who helped draft SB 1070 and is known for being a vocal proponent of such measures across the nation.

In a handful of other states, including Alabama, Georgia, Oklahoma, and South Carolina, legislation modeled after SB 1070 has been approved in one of the state legislative houses and is awaiting consideration in the other. Even in these states, however, there has been significant resistance from the business community and law enforcement agencies.

In Georgia, for example, state agricultural interests have lobbied heavily against a measure (HB 87) that would grant the police expanded authority to inquire into the immigration status of stopped individuals, and that would require all state employers to use the federal E-Verify system. In early April, a coalition of 270 agricultural employers sent a letter to Georgia Governor Nathan Deal (R), urging him not to sign HB 87 into law because it would place an "undue burden" on employers.

And in Alabama and South Carolina, opposition to recent immigration enforcement measures has come largely from state and local law enforcement agencies, which have expressed concerns about the potential effect of the measures on community policing efforts.

In other states, new attempts to revoke existing benefits for unauthorized immigrants have failed. State legislators in Washington and New Mexico rejected bills that would have denied driver licenses to unauthorized immigrants by reversing longstanding policies that grant licenses based on in-state residence. While many incoming lawmakers in these states publicly backed changes to driver license policies, other legislators argued that changing the laws would lead to public safety hazards and a surge in the number of unlicensed drivers.

Obama Voices Hesitation to Using Executive Action to Halt Removals. In response to a question posed at a Latino student town hall event, President Obama stated that it was "just not the case" that he could use his executive branch authority to suspend deportations for all unauthorized immigrant students. The president referenced the fact that existing laws require immigration enforcement, and emphasized that changing these laws would require a legislative rather than an executive branch fix.

During the same event, President Obama stated that he did not think it would be "appropriate" to extend Temporary Protected Status (TPS) to all unauthorized immigrant students, as TPS is normally granted to foreign nationals in the United States who temporarily cannot return to their home countries because of a humanitarian emergency.

Latino leaders and immigrant advocates have increasingly pressed the Obama administration to use its authority to affect immigration policy change.

H-1B Visa Filing Window Opens. U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B visa applications on April 1, 2011 for fiscal year (FY) 2012, and had received 10,400 petitions as of April 8, 2011 according to the agency's website. The H-1B program allows U.S. employers to sponsor highly skilled foreign-born workers for employment in the United States for up to six years. There are 65,000 H-1B visas available each fiscal year for foreign nationals holding at least a bachelor's degree. An additional 20,000 visas are reserved for foreign nationals with advanced degrees who have graduated from U.S. colleges or universities.

In related news, according to a recent report released by the National Foundation for American Policy, the U.S. government has collected more than $3 billion in H-1B petition fees over the past decade.

Read the latest USCIS press release on the current status of the H-1B visa program for FY 2012.

Read the new report on H-1B visas from the National Foundation for American Policy.

Post-SBInet Technology Will Not Be Deployed Until 2015, GAO Finds. U.S. Customs and Border Protection (CBP) will not complete deployment of several key pieces of technology along the southwest border until the end of 2015 or the beginning of 2016, according to a new report issued by the Government Accountability Office (GAO). The report, which examined CBP's planned technology deployments in the wake of the failed Secure Border Network Initiative (SBInet), found that the agency now plans to deploy several installments of stand-alone technology, such as remote video surveillance systems and hand-held equipment, as part of its new border security program.

SBInet, which the Department of Homeland Security ended in January 2011, aimed to deploy an integrated and standardized set of technology along the southwest border that would provide agents with a common operating picture.

CBP Approves Ten Additional Airports for Direct Cuba Flights. Ten additional U.S. airports received permission from CBP to charter direct flights to and from Cuba. The new airports are the first to be certified after DHS announced a change in its policy toward Cuba flights this past January. Prior to the policy shift, just three U.S. airports had permission to fly planes directly to and from Cuba: John F. Kennedy International Airport in New York, Los Angeles International Airport, and Miami International Airport. The plan to expand the number of airports authorized to charter Cuba flights is one part of the Obama administration's larger effort to ease travel restrictions between the two countries.

Read more about the change in travel policies toward Cuba under the Obama administration in the March 2010 Policy Beat.

Read the DHS Final Rule, published January 28, 2011 in the Federal Register.

New Border Security Bill Introduced in the House. Representative Duncan Hunter (R-CA) introduced a new bill aimed at enhancing security along the southwest border, although it remains to be seen whether the bill has any chance at passage. The bill would authorize the construction of 350 additional miles of physical fencing along the border and require CBP to notify Congress whenever apprehensions along the border increased by 40 percent over the previous fiscal year.

The last time that Congress passed a border fencing bill (in 2006), it authorized CBP to construct 700 miles of fencing along the southwest border. Since then, the agency has put up more than 649 miles of pedestrian and vehicle fencing.

CBP Faces Criticism after "Deporting" 4-Year-Old Citizen. CBP found itself on the defensive after several media outlets reported that it deported a 4-year-old U.S. citizen to Guatemala. The child, who arrived at Dulles International Airport in Virginia on a flight from Guatemala, was sent back to the Central American country after CBP denied admission to her grandfather, who was not a U.S. citizen.

CBP maintains that, prior to placing the child on a flight to Guatemala with her grandfather, the agency first contacted her parents in New York and gave them the option of coming to pick her up. The parents' lawyer, however, told media outlets that CBP told the child's grandfather that if his granddaughter did not return to Guatemala, she could be placed in foster care.

One in Four Scientists, Engineers in the United States Is Foreign Born. A new report issued by the nonprofit group TechAmerica Foundation found that 25 percent of scientists and engineers in the United States are foreign born. In addition, the report states that foreign-born students make up 54 percent of the United States' mathematics doctoral candidates, 60 percent of its computer science doctoral candidates, and 65 percent of its engineering doctoral candidates.

State Department Approves O-1 Visa for Brazilian Soccer Star. The U.S. Department of State (DOS) approved an O-1 "alien of extraordinary ability" visa for Brazilian soccer legend Pelé, an approval that will enable the soccer legend to transition into his new position as the honorary president of the New York Cosmos.

The United States grants O-1 visas to foreign nationals who have received national or international acclaim in the sciences, education, business, athletics, or the arts, and who plan to come to the United States to continue working in their area of expertise. The O category of visas are typically valid for three years, but may be extended. According to DOS statistics, the agency issued 14,953 O-1 visas in FY 2010.

UT Passes Immigration Bills. Utah Governor Gary Herbert (R) signed into law a package of bills that combines immigration enforcement measures with a series of provisions aimed at legalizing the status of unauthorized immigrants in Utah.

The new Utah laws require state and local law enforcement officers to inquire into the immigration status of anyone in the state who is lawfully stopped for the suspected commission of a felony offense or a Class A misdemeanor. The law also stipulates that unauthorized individuals residing in Utah will be eligible to receive a temporary work permit if they pay a fine of $1,000 or $2,500 (depending on whether they entered the United States lawfully), register with the state government, and clear a criminal background check. Additionally, the new Utah laws call for the creation of a Utah-specific guest worker program that would be run in conjunction with the Mexican state of Nuevo Leon.

Several of these provisions could be deemed preempted by federal law if challenged in court, since only the federal government can grant legal status, provide legal authorization to work in the United States, and set up temporary or guest worker programs.

VA Governor Issues E-Verify Executive Order. Virginia Governor Bob McDonnell (R) issued an executive order requiring all state agencies to use the federal E-Verify system to confirm the work authorization of new employees by June 1, 2011, eighteen months before the December 1, 2012 deadline that was established through state legislation last year. In a press release announcing his decision, Governor McDonnell praised the E-Verify program and stated that his order was aimed at implementing the system in Virginia "as soon as possible."

E-Verify is a federally administered employee verification system through which employers who enter the biographic information of newly hired employees may receive confirmation as to whether these employees are authorized to work in the United States.

MN Governor Reverses E-Verify Policy. Minnesota Governor Mark Dayton (DFL) rescinded a prior executive order that directed all state agencies and certain state contractors to use the federal E-Verify system to screen the employment eligibility of new employees. In ordering the policy change, Governor Dayton stated that the E-Verify process was "inefficient" and had yielded only "negligible" results in Minnesota.

The previous policy was implemented in 2008 by former Governor Tim Pawlenty (R), who is now considering a presidential run in 2012.

Read the text of former governor Tim Pawlenty's 2008 executive order on E-Verify.

Authorities Close "Maternity House" in Southern California. Local authorities in the Los Angeles suburb of San Gabriel shut down a residence that they said was operating as a maternity clinic for pregnant Chinese women entering the country on tourist visas for the express purpose of delivering their children in the United States.

The news of the clinic shutdown, which rapidly garnered national media attention and scrutiny, comes on the heels of a reignited debate over the current interpretation of the 14th Amendment to the U.S. Constitution, which grants birthright citizenship to all children born on U.S. soil. Some critics claim that birthright citizenship laws are regularly exploited by foreign nationals who enter the United States solely so that their children are afforded U.S. citizenship.